Elisenda Casanas Adam: The Referendum on Catalonian Independence: The Position of the Catalan Authorities

Editors’ note: Today we publish two posts on the Catalan referendum held on 1 October. Elisenda Casanas Adam and Javier Garcia Oliva each offer differing perspectives on the process while engaging in a dialogue with one another. It is hoped that these posts will help explain to a UK audience the background to the referendum, the legal issues involved and ongoing matters of disagreement between the Spanish state and the Autonomous Community of Catalonia.

From the perspective of UK constitutional lawyers, the conflict over Catalonia holding an independence referendum may be difficult to understand, as it stands in stark contrast with the negotiated process that followed the Edinburgh Agreement and led to the vote on Scottish independence in 2014. For many, this would seem the example to be followed in similar cases. However, in the Catalan case not only has such a process of negotiation and agreement been impossible, but the conflict has also escalated to such a level that it has resulted in the shocking images of state police brutality against ordinary Catalan citizens attempting to cast their vote that have been condemned across the world.

In order to understand the position of the Catalan authorities, two issues must be taken into account. The first is that the current party leading the Catalan Government and Parliament is the same party that was previously in government in Catalonia for 23 years (formerly Convergencia Democratica de Catalunya, since 2016, renamed Partit Demòcrata Europeu Català, PDEC), on many occasions, collaborating with the different parties in power at the state level. This highlights that there has been a significant breakdown in the functioning of the Spanish ‘State of the Autonomies’ as established in the Constitution of 1978, leading to change their position to support independence. Indeed, as Javier Garcia Oliva’s post highlights, the Constitution of 1978 provides for a flexible and open framework that recognises both ‘the indissoluble unity of the Spanish nation’ and ‘the right to autonomy of nationalities (included specifically as a reference to Spain’s minority nations) and regions’ (Art. 2 CE). These and other provisions were included to provide specific recognition for Spain’s historical nations (Catalonia, Basque Country and Galicia) and to enable them to attain a high level of self-government within the newly territoriality-decentralised state, reflecting an agreement that resolved one of the most challenging issues in the design of the new Constitution. However, there has been growing dissatisfaction in Catalonia in relation to how these provisions have been developed, interpreted and applied, resulting in both the blurring of the distinction between nationalities and regions, and a centralization of the distribution of competences. These and other aspects, such as composition of the Senate and the financing system, have led to ongoing debates on the need for a constitutional reform of the model, but the high constitutional thresholds required for this, and the lack of agreement from the two state-wide parties, made it an impossible feat.

The origins of the current pro-independence movement can be traced back to 2010, when an in depth reform of the Catalan Statute of Autonomy, used as a bottom-up alternative to address some of the above problems, was significantly read down by the Constitutional Court. This was particularly controversial as the Statute had been approved by both the Catalan and Spanish Parliaments, following the legally established procedure, and endorsed by the Catalan citizens in a referendum. The challenge to the Statute, brought by the party currently in government at the state level (Partido Popular), and the ruling of the Constitutional Court were seen as breaking the agreement established in the 1978 Constitution, and led to stronger claims in favour of Catalonia’s independence, and of the Catalan citizens’ right to decide their constitutional future. The ‘Right to Decide’ has become the term used to frame Catalonia’s claims to self-determination, and is based upon Catalonia’s status as a minority nation, and on the democratic principle contained in Art. 1 of the Constitution, which informs the interpretation of the rest of the constitutional text.

There are also other reasons that have further fuelled support for independence in Catalonia. Spain’s economic recession, highlighting the problems with the financing system, and the severe austerity measures adopted by the Spanish authorities have contributed significantly to the dissatisfaction of citizens with the overall constitutional framework. This is also reflected in the diversity of the current pro-independence coalition in the Catalan Government, which includes the nationalist centre-right PDEC and the nationalist centre-left party, Esquerra Republicana (ERC), and relies on the support of an anti-capitalist party in the Catalan Parliament, Candidatura d’Unitat Popular (CUP). These concerns have been clearly communicated to the Spanish authorities on various occasions. On 30 July 2015, the previous Catalan Prime Minister, Artur Mas, brought a list of 23 demands from Catalonia to the Spanish Prime Minister, Mariano Rajoy. The current Catalan Prime Minister, Carles Puigdemont, then increased this number to 46 in his first meeting with Mariano Rajoy on 20 April 2016. Despite this, the Spanish authorities have not seriously proposed any reforms to the Catalan settlement or the State of the Autonomies more generally, as an alternative to independence for those not satisfied with the current situation. The Constitutional Court itself has highlighted that this is a political conflict that requires a political solution and cannot be resolved by the Court alone.

A second issue to note is that the Catalan authorities’ unilateral referendum process is the outcome of numerous failed attempts to either reach an agreement with the Spanish authorities to enable them to hold an independence referendum in Catalonia, or to try and pursue any other potential legal avenues that would allow the Catalan institutions of self-government to consult their citizens on Catalonia’s constitutional future. Various academics and experts from within and outside Catalonia have pointed to at least five different ways in which the referendum (or a consultation) could be held in a way compatible with the Constitutional framework, leading arguments that the Spanish authorities’ opposition to the referendum is for political rather than strictly legal reasons. The Spanish Government’s consistent response has been to refuse to even engage with the possibility of holding the referendum, and to challenge any legal measures adopted by the Catalan Parliament with this objective before the Constitutional Court. As Garcia Oliva explains, a first attempt to hold the referendum ended up relegated to a citizen-led participation event held on the 9th November 2014, and even then, charges were brought against the Catalan President and members of his Government for their minimum involvement in organising the vote. As Garcia Oliva also highlights, the Constitutional Court has largely supported the state authorities’ interpretation of the relevant constitutional provisions in its various decisions on the issue, indicating that in order to change them the Catalan authorities would need to follow the established procedures for constitutional reform. From the perspective of the Catalan authorities, this put them in the impossible situation of having to persuade the two main state-wide parties to agree to the reforms in order to meet the required thresholds. It is also worth highlighting that on various occasions the Catalan authorities have tried to bring in the European Union institutions and representatives as mediators between themselves and the Spanish authorities, but with no success.

As a result of all the above, the Catalan Government called ‘plebiscitary elections’ on the 27th of September 2015, resulting in a majority in favour of independence in the Catalan Parliament, with 47.7% of the votes. On the 9th November 2015, the newly constituted Catalan Parliament adopted a resolution where it declared ‘The start of a process for the creation of an independent Catalan State in the form of a republic’, and called on the Catalan Government to start preparing the necessary measures to that end. It is as the culmination of this process that the Catalan Parliament adopted its ‘Referendum Act’, and its ‘Act of legal transition and of the formation of the republic’, to enter into force in the case of the victory of the ‘Yes’ vote, last month. It is true, as Garcia Oliva highlights, that there were significant anomalies in the enactment of these Acts. But in this case, as in the meeting of international and good practice standards for the holding of a referendum, the Catalan authorities were again placed in an impossible situation: In a context where any actions or measures were immediately challenged and, if possible, invalidated, securing the highest possible standards remained a priority but they also had to try and ensure that the legislation, and then the referendum, could effectively proceed.

In the end, because of the repressive measures adopted by the Spanish authorities, the vote became more an act of resistance and an assertion of a desire to be heard and recognised than a referendum as planned. It makes little sense to discuss the turnout (42%), or to compare it to other referendums, when there were riot police in the street violently seizing ballot boxes and preventing people from voting; but at the same time, the fact that 2.2 million people came out to vote in these conditions (90% in favour of independence) highlights the very high degree of citizen dissatisfaction with the Catalonia’s relationship with the rest of the state, which the Spanish authorities still do not seem to want to recognise. Two days after the event, the big question is, what happens next? The Catalan Prime Minister has announced that he will ask the Catalan Parliament to proceed with a unilateral declaration of independence, but precisely because of all the above, this will be very difficult to justify; however, this does not mean that the result is not significant. On the other hand, the Spanish authorities need to radically change their approach in dealing with the conflict and take Catalan concerns and demands seriously. A starting point would be to recognise that Spain is a plurinational state. The events of the 1st October will be very difficult to forget for many in Catalonia, even for those who do not support independence, and responsibility will have to be sought for the cases of documented police brutality. Moving on from there, clearly some form of dialogue is necessary between both governments, even if just to avoid more situations of violence as those observed on the day of the vote. Ideally, some form of more constructive dialogue is required in order to address the causes of the current conflict and to start a process that could lead to a solution that is satisfactory for all parties involved. This solution may ultimately have to be put to a referendum, so that the Catalan citizens can finally come out and vote on Catalonia’s constitutional future.

Dr Elisenda Casanas Adam, Lecturer in Public Law and Human Rights and Associate Director of the Edinburgh Centre for Constitutional Law, Edinburgh Law School.

“This solution may ultimately have to be put to a referendum, so that the Catalan citizens can finally come out and vote on Catalonia’s constitutional future.”

I think this is the only solution. There needs to be a peaceful referendum, allowing full participation without outside (or of course inside) interference so that finally the Will of the Catalan people can be determined – this is self-determination as we had in Scotland (unfortunately a NO at the time to Independence).

For me, any UDI should be for the reason of holding such a referendum, perhaps along with a plea for international help (including the reluctant EU) to help hold such a referendum. Then the debates between Catalonian and Spanish authorities have force of majority – if it’s a YES.